Case Detail

HCAL000097A/2000

HCAL97/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 97 OF 2000

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BETWEEN
	YU CHEE YIN	Applicant

	AND

	THE COMMISSIONER OF THE INDEPENDENT COMMISSION AGAINST CORRUPTION	Respondent

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Coram: Hon Hartmann J in Court

Dates of Hearing : 13 and 14 June 2001

Date of Handing Down Judgment: 31 July 2001

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J U D G M E N T

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INTRODUCTION

1. The applicant in these proceedings for judicial review was at all material times an officer in the Independent Commission Against Corruption ('the ICAC' or 'the Commission'). He had joined that body in 1979, rising to the rank of Senior Investigator. By letter dated 9 October 1999, the applicant's appointment with the ICAC was terminated. The termination was made pursuant to section 8(2) of the Independent Commission Against Corruption Ordinance, Cap.204 ('the Ordinance'), which provides that the Commissioner of the ICAC may terminate the appointment of an officer if 'he is satisfied that it is in the interests of the Commission to do so'.

2. The applicant's termination was the culmination of a lengthy internal investigation into his activities and those of three fellow officers. That investigation had originally encompassed possible criminal charges but suggestions of any criminal conduct had fallen away at a relatively early stage and the investigation had focused instead on the fitness of the applicant and the others to remain as officers of the ICAC.

3. The applicant had himself first become aware of the investigation in late March 1998 when he had been interviewed and interdicted from duty.

4. The investigation had centred on the activities of the officers on the evening of 10 December 1997. On that evening they had all attended a dinner at a restaurant. Seemingly, the dinner (eaten in a private room) had been hosted by an ex ICAC officer named Tsui Ka Kit; known as Alex Tsui. Mr Tsui, who had once held the elevated rank of Senior Assistant Director of the ICAC, had been the subject of very considerable publicity when his own appointment had been terminated in 1993.

5. More will be said of the dinner later in this judgment. At this early juncture, it is sufficient to say that the applicant has never denied attending the dinner. Rather, it has always been (and remains) his assertion that it was no more than an innocent social gathering. The Commissioner of the ICAC, under advice, has taken a very different view. This is illustrated by the wording of the opening paragraph of the 'statement of reasons' annexed to the letter of termination dated 9 October 1999 which reads :

" The Commissioner is satisfied that it is in the interests of the Commission to terminate your appointment .... for the reasons that your conduct has cast grave doubt on your judgement and integrity as an ICAC officer and on your loyalty to the Commission ...."

THE GROUNDS OF CHALLENGE

6. Originally, the applicant's challenge to the lawfulness of the decision of the Commissioner was based on three grounds. The first two of those grounds were as follows; namely, that :

(i) The Commissioner's decision to terminate the employment of the applicant was based upon information from an undisclosed source or information which may not be admissible in evidence in formal disciplinary proceedings, therefore, it was grossly unfair and a breach of the rules of natural justice.
(ii) In breach of those rules, the applicant was given no fair opportunity for correcting or contradicting what was said against him, and was given no opportunity to test, by cross-examination or otherwise, the veracity of the statements upon which the Commissioner relied.

7. However, during the course of the hearing Mr Harris, for the applicant, conceded that he faced difficulties with those first two grounds as worded. In the result, the first ground was amended, being split effectively into two grounds, while the second original ground was abandoned. Although the amended grounds were not formally drafted, I understood that in essence they were as follows :

(i) In the particular circumstances of this case, fairness dictated that the Commissioner divulged all the materials upon which he relied (or may have relied) to the applicant and his reliance on undisclosed materials was a breach of natural justice.
(ii) In reaching his decision to terminate the employment of the applicant, the Commissioner relied on materials which were either of such a tenuous nature or so discredited by their own internal inconsistencies that they were of no probative value.

8. The third ground has remained unaltered and is as follows; namely, that :

(iii) The Commissioner stated as a fact that the dinner on 10 December 1997 was attended by nine persons including an ex ICAC officer named Chiu Chi Ming and two others, yet no statements were sought by him from those other persons. As a result, that allegation remained uncorroborated by any independent source. The Commissioner's failure to conduct adequate enquiries was unreasonable (I take that to mean a breach of procedural fairness) and led him to a conclusion which no person or body acting reasonably could have reached.

9. As Mr Harris argued the matter, all the applicant's grounds of challenge encompassed two fundamental assertions. First, that the process of coming to the decision to order the termination of the applicant was unfair to him and, second, that the unfairness resulted in a decision which was perverse or irrational; in short, a decision which no reasonable decision-maker could reach.

10. To understand the thrust of Mr Harris's arguments, it is, I believe, necessary to consider a number of preliminary matters; first, the factual background, second, the fundamental principles of fairness applicable in administrative procedures of the kind that led to the termination of the applicant's appointment and, third, the statutory process which the Commissioner was obliged to follow in reaching his decision.

THE FACTUAL BACKGROUND

(A) The applicant's version

11. The applicant has at all times been consistent in his version of what happened on 10 December 1997. His version may be summarised as follows :

(a) On the afternoon of 10 December 1997, he spoke to a fellow ICAC officer named Liu Kin Che, known as Jacky Liu, who invited him to the dinner. The applicant was told that Alex Tsui would be there but understood that it would be nothing more than an informal, social gathering.
(b) The applicant knew that Alex Tsui had been forced to leave the ICAC in controversial circumstances and that there was no love lost between him and the Commission. However, although not in any way of a friend of Alex Tsui - indeed, they had never met - the applicant admired him and wanted to meet him. He saw no reason to report the matter. It was nothing more than a social gathering held out of working hours; in short, a purely private affair.
(c) The applicant was told to rendezvous that evening at the Tsim Sha Tsui MTR station. He waited there and met Jacky Liu and two other serving officers. The other two officers were Sit Ah Lung, known as Alan Sit, and Ting Ka Lun, known as Allen Ting.
(d) When they met, Jacky Liu told them that, as a number of people were going to the dinner and it was to be held with Alex Tsui, it would be best to 'keep a low profile'. For that reason, Jacky Liu suggested that they walk separately. It was agreed that this should be done.
(e) As to the number of people who attended the dinner, there were never more than six persons present; namely, the applicant, Jacky Liu, Alan Sit, Allen Ting, Alex Tsui and Lam Ping Cheong, a former ICAC officer who practised as a lawyer and, as such, had acted for the defence in a number of ICAC prosecutions.
(f) The applicant only engaged Alex Tsui in social talk, mainly about sport. There was no discussion about work. He had no conversation (that he could remember) with Andrew Lam who in any event was the last to join the gathering and only remained for a short period of time.

(B) Other evidence available to the Commissioner

12. Seemingly, what was not known to the applicant (or the others who attended the dinner) was that their movements that evening were being monitored by a group within the ICAC trained to carry out surveillance. The report of the surveillance officers was made available to the Commissioner and, inter alia, revealed the following :

(a) At around 6 o'clock that evening, Alan Sit and the applicant were seen in the concourse of the MTR station. However, they remained at a distance from each other and did not appear to make contact.
(b) Shortly thereafter Jacky Liu came to the concourse. He joined Alan Sit and the two made for the exit. When they did so, the applicant moved too, staying some distance behind them and appeared to be taking 'counter-surveillance precautions'. Out on the street, the applicant remained behind Jacky Liu and Alan Sit and appeared to be 'spotting for persons following them'.
(c) At the restaurant, Jacky Liu, Alan Sit and the applicant entered the private dining room. Shortly thereafter Allen Ting joined them.
(d) The next person seen entering the room was a Chinese male in his middle years. A description was recorded including the fact that he resembled a former ICAC officer named Chiu Chi Ming whose appointment with the Commissioner had been terminated.
(e) The next two persons to enter the room were Alex Tsui and Lam Ping Cheong. They entered together.
(f) About an hour later, two Chinese males met at the reception of the restaurant and entered the private dining room together.

13. According to the report of the surveillance team, a total of nine persons attended, three more persons than the applicant had admitted being present.

14. As to the presence of the man who resembled the former ICAC officer, Chiu Chi Ming, a study of immigration records revealed that Mr Chiu had arrived in Hong Kong the day before the dinner and had departed two days later.

15. As with the applicant, both Alan Sit and Allen Ting were interviewed as part of the ICAC's internal investigation. The transcripts of their interviews were made available to the Commissioner.

16. Sit was first interviewed on the night of 28 March 1998. If the contents of his statement are accepted, he clearly knew of the dinner with Alex Tsui before 10 December and was concerned that ICAC investigators or the police Special Branch might get to know of it. He confided in Jacky Liu and the two spoke in Liu's office. Liu said that he would arrange for counter-surveillance measures to be taken. The colloquial term used was that of 'mine sweeping'. Sit's concerns, therefore, indicated a meeting of far greater sensitivity (and perhaps potential prejudice for serving ICAC officers) than the inherently innocent social gathering spoken of by the applicant.

17. In the same interview, Sit said that six persons were present at the dinner; namely, himself, the applicant, Allen Ting, Jacky Liu, Alex Tsui and Lam Ping Cheong. However, as Mr Blanchflower, counsel for the Commissioner, pointed out, he did not specifically deny the presence of other persons. In that regard, to quote Mr Blanchflower, he 'left the door open', when he said : "I do not recollect what other persons were present apart from the above-stated six persons, including myself".

18. The following day (29 March 1998) in the mid-afternoon, Sit gave a further interview which he commenced by saying : "I now recollect there should have been three other persons other than the six (including myself) I mentioned in my last statement." Sit said that the persons whom he had not earlier mentioned were a man named 'Ah Ming', introduced as a 'former ICAC colleague', and, arriving later, two men who were introduced to those present by Jacky Liu 'in broken Putonghua'. In summary, Sit spoke of nine persons attending the dinner, a number which tallied with the report of the ICAC surveillance team.

19. Ting was first interviewed late on the night of 27 March 1998, the interview concluding in the early hours of the morning. As to the taking of counter-surveillance measures, Ting said that he received specific instructions from Jacky Liu in this regard. Liu said that he would walk ahead to the restaurant with Sit. To quote from the English translation of the interview, Jacky Liu said to Ting that :

"....Simon [the applicant] and I were to stay behind, to be responsible for 'mine sweeping'. I understood him to mean to see if persons were following them or not. I believe he did not want office people or some persons not identified by him to come to know about our having dinner at the Tsimshatsui East restaurant. He told me to perform 'mine sweeping' and that was for hoping that if ever I noticed persons following, whether they be ICAC persons or persons from other law enforcement bodies, I was to report to him."

Ting continued by saying :

"....Simon and I conducted the so called 'mine sweeping' task Jacky LUI mentioned then. But walking on and on, I lost sight of them."

20. Concerning the number of persons at the dinner, Ting said that he remembered seven being present. The seventh person he spoke of was a former ICAC officer known as 'Ah Ming'. His name, said Ting, was Raymond Chiu. But, to employ Mr Blanchflower's phrase for a second time, he too left the door open as to the exact number at the dinner when he said :

".... as to whether there were other persons present or not, I dare not say for sure. But even if there were really other persons present, I believe I was not acquainted with those persons, and at the most just nodded and greeted each other."

21. The following morning, Ting gave a further interview in which he said that there had, in fact, been nine persons at the dinner and not seven. In respect of the extra two, he said :

"I remember the two males arrived later than we did. Having arrived, Jacky greeted them and introduced them to me, SIT and Simon YU [the applicant]. I remember at that time Jacky spoke in Putonghua with the two persons ...."

Ting continued by saying :

"The two sat in between Simon YU and Jacky. So I believed Simon would talk with them but I do not know their conversation contents."

22. Evidence was obtained from the restaurant itself but only in early April 1998 after the applicant had suggested that, to verify numbers, the investigators should check the restaurant bill. The manager of the restaurant said that the dining room had been reserved by Alex Tsui. He had made a reservation for four persons. The manager, however, could not recall how many persons had, in fact, sat down to eat. Nor did he have a record of what was eaten. All he had was a record of the bill which came to $2,464.

23. Those responsible for conducting the ICAC's internal investigation chose not to approach those other identified persons who they believed to be at the dinner; namely, Alex Tsui, Raymond Chiu (Chiu Chi Ming) or Lam Ping Cheong.

(C) The purpose of the dinner

24. Although the applicant has all along contended that the purpose of the dinner was purely social, evidence was placed before the Commissioner to suggest otherwise. A detailed analysis of the evidence is not required. Suffice to say that both Sit and Ting indicated that the two unidentified men who joined the dinner late were officials of an independent state organization, the implication being that it was an organization tasked with security matters. Mr Harris accepted that if these men had, in fact, been present and if - as the general tenor of the evidence implied - their purpose had been to cultivate links of an illicit kind in the ICAC, that would have been a matter to be viewed by the Commissioner with utmost seriousness.

25. In the circumstances no issue was taken with the fact that, if the Commissioner had reached his decision lawfully, he was entitled to come to a finding that the applicant was a man whose integrity could not be trusted and that it was therefore in the interests of the Commission for his appointment to be terminated. Integrity is the antithesis of corruption. If an officer, because of a lack of integrity, cannot be trusted with confidential information then he is of no value to the Commission. Indeed, he is a liability to it. It is self-evident, I believe, that corruption cannot be effectively combated by officers who are themselves liable to be corrupted.

FAIRNESS : A CONSIDERATION OF THE FUNDAMENTAL PRINCIPLES

26. In the course of his submissions, Mr Harris said that, in respect of the applicant, the Commissioner was not presented with 'clear-cut, probative, unequivocal evidential material'. The other ICAC officers under investigation who had spoken of counter-surveillance measures and of nine persons being at the dinner had only done so after, at first, effectively denying those things. Those other officers had not given consistent accounts. Accordingly, argued Mr Harris, in the circumstances of this case, standards of fairness not being immutable, it was incumbent upon the Commissioner to take a number of measures which he failed to take. First, he should have divulged all the material upon which he relied (or may have relied) so that the applicant could test all of that material and/or use it in making his representations. The use (or potential use) of undisclosed material by the Commissioner was therefore, in the circumstances, unfair to the applicant. Second, the failure to obtain statements from all the identified persons who alleged attended the dinner meant that the Commissioner was relying on 'selected' evidence and deprived the applicant of an opportunity to rely on any of the material that should have been obtained. That failure, in the circumstances of this matter, was again unfair to the applicant.

27. What may or may not amount to unfairness in administrative matters enquiries had been canvassed in a large number of cases. In R. v. Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531, a decision of the House of Lords, Lord Mustill distilled the fundamental principles - which, he recognized, are essentially intuitive in nature - down to six in number. In my view, those principles remain an invaluable guide. I have, for ease of reference, broken down into separate paragraphs each of the principles. They appear in the judgment (at page 560 D-G) in a single paragraph ：

" What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that :

(1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances.
(2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type.
(3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects.
(4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken.
(5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both.
(6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."

28. It is important, I believe, to take note of Lord Mustill's caveat; namely, that it is not enough for an applicant to persuade a court that some procedure other than the one adopted by the decision-maker would be better or more fair. Rather, an applicant must show that the procedure is actually unfair.

29. In addition, Lord Mustill warned that the court must constantly bear in mind that it is to the decision-maker, not the court, that the legislature has entrusted not only the making of the decision but also (to a greater or lesser degree) the choice as to how the decision is to be made.

30. In defining his principles, Lord Mustill said that what fairness demands is dependent on the context of the decision and invariably an essential feature of the context will be the statute which creates the discretion to make such a decision : see principles 3 and 4. To what extent, therefore, was the Commissioner, in coming to his decision to terminate the applicant's appointment, working within the context of the Ordinance?

THE STATUTORY CONTEXT

31. When the Ordinance was first enacted in 1974, section 8(2) read simply :

" The Commissioner may, if he is satisfied that it is in the interests of the Commission, terminate the appointment of an officer without assigning any reason therefore."

32. However, in December 1994, a committee appointed by the then Governor with the mandate of reviewing the various powers of the Commission and its manner of operation, a body known as the ICAC Review Committee ('the Committee'), recommended that changes be made to section 8(2). In Chapter 14 of its report (at 14.21), the Committee said :

"We consider that the functions and responsibilities of the ICAC are such that the Commissioner should continue to have the authority to remove without delay any officer whose loyalty or integrity is in doubt. At the same time, natural justice demands that the officer should be given an opportunity to defend himself before the Commissioner takes a final decision. Unless the officer is informed of the reasons for the intended course of action, he can neither state his case nor lodge a meaningful appeal against the Commissioner's decision ...."

33. As to the guiding principles underlying any code of procedure, the Committee (at 14.25) made the following recommendations :

"We recommend that the power of the Commissioner to terminate the service of an officer under section 8(2) of the Ordinance should be retained. However, the procedure for taking such action should be formalized to reflect the following important principles :
* the officer concerned should be informed of the reasons for contemplating such action;
* he should be given an opportunity to state his case;
* he has a right of appeal to the Governor."

34. Having regard to the special responsibilities of the ICAC and the need of the Commissioner to deal speedily with officers believed to be undermining that work, the Committee recommended (by a majority) that, although an officer should be entitled to make representations, no form of disciplinary tribunal need be constituted.

35. However, the Committee recommended that, before a decision to terminate an officer's appointment was made, the Commissioner should submit the facts of the case, together with any representations made by the officer, to an independent advisory body which would render its views on the matter. The final decision, however, would rest with the Commissioner. It was the recommendation of the Committee that the appropriate body would be the Advisory Committee on Corruption ('the ACOC'), a body containing representatives of the broader public as well as officers of the Commission.

36. To give these recommendations the force of statute, section 8(2) of the Ordinance was amended in 1996. The relevant portion of the section now reads :

"(a) Subject to paragraph (b), the Commissioner may, if he is satisfied that it is in the interests of the Commission to do so, after consulting the Advisory Committee on Corruption, terminate the appointment of an officer.
(b) Before terminating an appointment under this subsection -
(i) the Commissioner shall by notice in writing inform the officer concerned that the termination of his appointment is under consideration and the reasons therefore; and
(ii) in the notice such officer shall be given a period of not less than 7 days within which to make, and is hereby authorized to make if he so wishes, written representations to the Commissioner as regards such reasons or as to why his appointment should not be terminated or as regards both.
(c) Where an appointment is terminated under this subsection-

(i) the Commissioner shall notify the officer in writing of the termination; and
(ii) the officer may, within the period of 21 days beginning on the date of the notification under subparagraph (i), appeal to the Governor against the termination."

37. It should also be said that, following the Committee's report, but before the amendment to the Ordinance, the Commissioner issued an internal staff circular setting out the procedures to be adopted if termination of an officer's service was being contemplated. The purpose was clearly to try and ensure that the ICAC's internal procedures accorded with the Committee's views of what fairness demanded. I am told that the circular, which echoes the provisions of section 8(2) as amended, continues to be employed and was employed in respect of the applicant.

38. The circular sets out the following procedures :

"(a) The officer will be interviewed by CAC ['the Commissioner'] or an officer acting on his behalf to assist CAC in deciding whether the officer has a case of termination of appointment to answer."

This procedure of interviewing the officer constitutes the 'internal investigation'. Its purpose is to ascertain whether the officer has a case to answer; in short, whether the matter needs to be taken further. The interviews will invariably give the officer a good idea of the allegations made and give to the officer the opportunity to explain his position.

"(b) If there is a case to answer, the officer concerned will be informed by written notice:-
(iii) that the termination of his appointment is under consideration and of the grounds for such action; and
(iv) that the officer may within a period prescribed in the notice, which will be not less than seven days, make written representation to CAC regarding the grounds of the contemplated dismissal, and/or as to why his appointment should not be terminated.

The procedures outlined here are mandated in the Ordinance in terms of section 8(2)(b)(ii). The Commissioner is obliged to inform the officer that he is considering the termination of his appointment and to give the reasons why he is doing so. The officer is then given an opportunity to make representations, albeit this must be done within a limited period of time. These procedures accord with Lord Mustill's fifth and sixth principles.

"(c) A report of the case together with the officer's representations and CACs' views on those representations will then be submitted to the Advisory Committee on Corruption (ACOC) for advice; a copy of the material submitted to ACOC will be provided to the officer."

This procedure is mandated in section 8(2)(a) of the Ordinance which directs that the Commissioner will, before a decision is made, consult with the ACOC. So that the officer knows exactly what material is being considered by the ACOC he is supplied with a copy of that material.

"(d) ACOC will consider the case, may invite the officer to appear before it, and will advise CAC who will decide in the light of that advice whether or not to terminate the appointment."

Although the Ordinance makes no reference as to how the ACOC shall carry out its advisory duties, the internal circular makes it plain that it has broad powers including, in its discretion, whether or not to invite the officer to appear before it to make oral representations. That being so, it must follow that it has the power, in its discretion, to receive further written submissions from the officer. The Commissioner, of course, retains jurisdiction to make the final decision but he may only do so after consulting with the ACOC and having taken account of its advice.

COMPLIANCE WITH THE STATUTORY SCHEME AND THE INTERNAL CIRCULAR

39. Before considering the applicant's individual grounds of challenge, it should be said that no allegation has been made that the Commissioner failed strictly to follow the procedure set down in section 8(2) of the Ordinance or the Commissioner's internal circular. As I understood the broad intent of Mr Harris' submissions, it was to the effect that, in the circumstances of this case, fairness dictated that the measures to which he has referred should have been put into effect as part of the scheme of procedure.

THE APPLICANT'S FIRST GROUND : DISCLOSURE OF ALL MATERIALS

40. As to the issue of disclosure, Mr Harris submitted that full details of the surveillance report compiled by ICAC operatives should have been made available to the applicant; presumably so that he could consider it and make detailed representations as to why it should not be accepted. In addition, full copies of the various statements made by the other officers under investigation, especially Sit and Ting, should have been made available to the applicant; presumably so that he could consider them too and make representations concerning the shift in their admissions : as Mr Harris expressed it, why it was that the statements were 'tainted'.

41. In my judgment, however, no breach of natural justice is evidenced by the fact that the applicant did not receive all the material to which Mr Harris made reference. The technical rules of evidence applicable to civil and criminal proceedings form no part of the rules of natural justice. Civil and criminal litigation may compel full discovery but no such rule can be imported into administrative proceedings of the kind under review. See, for example, Mahon v. Air New Zealand Ltd [1984] 1 AC 808 (PC) in which Lord Diplock (at 820) said :

" The rules of natural justice that are germane to this appeal can, in their Lordships' view, be reduced to those two that were referred to by the Court of Appeal of England in Reg. V. Deputy Industrial Injuries Commissioner, Ex parte Moore [1965] 1 Q.B. 456, 488, 490 .... The first rule is that the person making a finding in the exercise of such a jurisdiction must base his decision upon evidence that has some probative value in the sense described below. The second rule is that he must listen fairly to any relevant evidence conflicting with the finding and any rational argument against the finding a person represented at the inquiry, whose interests (including in that term career or reputation) may be adversely affected by it, may wish to place before him or would have so wished if he had been aware of the risk of the finding being made.

The technical rules of evidence applicable to civil or criminal litigation form no part of the rules of natural justice. What is required by the first rule is that the decision to make the finding must be based upon some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory.
The second rule requires that any person represented at the inquiry who will be adversely affected by the decision to make the finding should not be left in the dark as to the risk of the finding being made and thus deprived of any opportunity to adduce additional material of probative value which, had it been placed before the decision-maker, might have deterred him from making the finding even though it cannot be predicted that it would inevitably have had that result." [my emphasis]

42. Clearly, in my view, what is required is no more than that a person under risk should be sufficiently informed of the allegations made against him so that he is not in any relevant way 'left in the dark' and thereby deprived of the opportunity to produce his own material for consideration, whether that material be in the form of representations or third party evidence.

43. In the present case, when the applicant was advised in terms of section 8(2)(i) that the termination of his appointment was being considered, he received a detailed statement of reasons. It is valuable, I think, to repeat that statement, if only to illustrate the degree to which it details the allegations made :

"(i) At the instigation of Chief Investigator LUI Kin-che (CL LUI), you attended a dinner meeting in East Ocean Restaurant in Tsimshatsui East on 10 December 1997 and met Mr TSUI Ka-kit, former Deputy Director of the ICAC who was dismissed in 1993. Acting on CI LUI's instruction, you provided counter-surveillance for CI LUI and Senior Investigator SIT Ah-lung (SI SIT) when they proceeded to the restaurant to ensure that they were not followed, so that the meeting would not be made known to the ICAC; and
(ii) In addition to CI LUI, SI SIT and yourself, the dinner meeting was attended by Mr TSUI, Senior Investigator TING Ka-lun, Mr Andrew LAM Ping-cheong, a former ICAC officer, Mr CHIU Chi-ming, another ICAC officer who was dismissed under Section 8(2) of the ICAC Ordinance, and two other persons. At the material time, the ICAC was carrying out investigations into serious offences suspected to have been committed by persons known to be associates of Mr TSUI. On 1 September 1997, you were involved in an arrest and search operation involving some of the associates. Mr Andrew LAM is a solicitor who represented several suspects in the ICAC investigations. You have failed to give a satisfactory account of the purpose of the dinner gathering and discussion held. Furthermore, you said only six persons attended the dinner meeting while in fact nine person had attended. When interviewed during the disciplinary investigation, you failed to disclose the presence of Mr CHIU and the two other persons. Your failure to give a full and truthful account of the meeting has left the Commissioner in serious doubt as to the extent of your involvement with Mr TSUI and the other personalities concerned."

44. Having read that statement, the applicant could hardly have been left in doubt as to the exact nature of the allegations being made. Nor does it appear that the applicant was in any way restrained from making detailed representations. These representations, prepared by his solicitors, ran to some 10 pages. The applicant was, therefore, able to voice his criticisms of the assertions being made and, if he so wished, to present evidence in support of those criticisms. In such circumstances I do not see how a failure to receive full discovery from the Commissioner can be said to constitute a breach of the rules of fairness.

45. It is true that the applicant would not have known the source of some of the allegations being made. But, as Mr Blanchflower expressed it, the rules of natural justice do not require a decision-maker to disclose the source of his information. For example, public policy may dictate that the source not be disclosed. In the present case the surveillance evidence was obtained by ICAC operatives who, for cogent reason, require to remain anonymous and, in addition, to keep their methods of procedure confidential.

46. In support of his contention that natural justice in administrative enquiries does not require disclosure of sources, Mr Blanchflower referred to R. v. Gaming Board for Great Britain, ex parte Benaim and Khaida [1970] 2 QB 417. In determining whether applicants should be granted licences, the Gaming Board questioned them on information that had been obtained from sources which the Board declined to disclose. Application was made for an order of certiorari to quash the findings of the Board on the basis that the refusal to give the unsuccessful applicants the required information had been wrong in law. The Divisional Court refused leave and the applicants appealed to the Court of Appeal. In dismissing the appeal, Lord Denning MR spoke (at page 431) of the type of information that the Board could consider :

" Seeing the evils that have led to this legislation, the board can and should investigate the credentials of those who make application to them. They can and should receive information from the police in this country or abroad who know something of them. They can, and should, receive information from any other reliable source. Much of it will be confidential. But that does not mean that the applicants are not to be given a chance of answering it. They must be given the chance, subject to this qualification: I do not think they need tell the applicant the source of their information, if that would put their information in peril or otherwise be contrary to the public interest."

The Master of the Rolls continued by saying :

".... But, without disclosing every detail, I should have thought that the board ought in every case to be able to give to the applicant sufficient indication of the objections raised against him such as to enable him to answer them. That is only fair. And the board must at all costs be fair. If they are not, these courts will not hesitate to interfere."

47. It is evident, I believe, that the amendment to section 8(2) in 1996 was made to ensure procedural fairness but to do so within the context of the public policy considerations that applied (and continue to apply) to the Commissioner. Lord Denning's observations are therefore, in my view, of direct relevance in the present case.

48. Mr Harris argued with vigour that, whatever the general principle may be, the special circumstances of this case demanded what, in reality, amounts to formal discovery of documentary material. I cannot agree. Although the factual background may be unusual, that of itself does not create a special set of circumstances. As Mr Blanchflower pointed out, the other officers under investigation did not make quite the volte face that Mr Harris has suggested. As Mr Blanchfolower expressed it, both Sit and Ting 'left the door open' in their first statements and moved to their final version, in each instance, within a matter of hours.

49. In any event, as Mr Blanchflower pointed out, the applicant would have known that likely sources of information being considered by the Commissioner were the statements of those other officers who had been interviewed. In this regard, the following exchange appears in one of the applicant's interviews :

"Q : We have interrogated those who were present that night. According to them, three other persons were present.
A : Not true at all. From beginning till end, there were six persons. Up to the moment I left, there were six persons."

THE APPLICANT'S SECOND GROUND : RELIANCE ON MATERIALS LACKING PROBATIVE VALUE

50. I can find no substance in this ground. In my view, all the matters argued under this heading by Mr Harris were essentially 'jury' matters; in short, matters to be left to the decision-maker to weigh and consider and decide. I fail to see how the Commissioner can be faulted in any way for following that exact course.

51. Yes, there were inconsistencies between various witnesses. Experience of criminal trials makes it manifest that inconsistencies are to be expected in almost all matters. Mr Harris, for example, spoke of inconsistencies in the various versions of the order in which persons entered the private dining room. But inconsistencies of that nature were for the Commissioner to resolve - if he thought it necessary to do so - and I cannot see how such inconsistencies can support the contention that the evidential material available to the Commissioner was of no probative value. I can only say that in my view much of the evidence was highly probative.

52. It is true that the other officers under investigation did not immediately, in the course of their interviews, come to their final version of events. To that extent it is correct to say that their statements contained inconsistencies. But inconsistencies, of themselves, do not operate to strip evidence of all probative value. It depends on the nature of the inconsistencies and their extent; in short, it is essential to consider all the circumstances. In the present case, the Commissioner was able to look to what, in the final analysis, was the version of events put forward by each of the other officers under investigation and to see to what extent those versions did or did not tally with each other. He was entitled to consider the surveillance report and to see to what extent that report did or did not tally with the versions put forward by the other officers under investigations. In summary, he was entitled to look at matters in the round. It was for him, as the finder of fact, to decide what evidence he accepted or what evidence he rejected.

53. As was said by Lord Diplock in Mahon v. Air New Zealand Ltd (supra), in describing the duty imposed upon a finder of fact :

".... The first rule is that the person making a finding in the exercise of such a jurisdiction must base his decision upon evidence that has some probative value in the sense described below. ....
.... What is required by the first rule is that the decision to make the finding must be based upon some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory."

54. I am satisfied that the material considered by the Commissioner (and the ACOC which advised him) was, despite the existence of inconsistencies, quite manifestly of probative value. Whether this court would have come to the same finding is not to the point. It was for the Commissioner to decide the merits of the matter. The legislature has given that power to him and it is not for this court to attempt to assume such power; it does not act as a court of appeal.

THE APPLICANT'S THIRD GROUND : THE FAILURE TO MAKE ADEQUATE ENQUIRIES

55. In the course of his submissions, Mr Harris accepted that it was not, in the circumstances of this case, incumbent upon the Commissioner to seek to obtain statements from all the identified persons who were alleged to be at the dinner. Mr Harris conceded, for example, that no obligation rested on the Commissioner to seek a statement from Alex Tsui. Having regard to the enmity between Mr Tsui and the Commissioner, Mr Harris accepted that any such statement would no doubt, in the view of the Commissioner, be of very dubious value. But Mr Harris contended that procedural fairness dictated that the Commissioner at least seek the statements of other persons alleged to have been present; for example, the former ICAC officer Raymond Chiu, a gentleman who had also suffered termination of his contract. The need arose in this case, said Mr Harris, because the Commissioner was aware of the fact that the applicant disputed that nine persons had attended the dinner, insisting that only six had attended. As a result, it was incumbent upon the Commissioner to seek a broad spectrum of evidence.

56. As a matter of general principle, I am satisfied that in administrative enquiries, absent any statutory or regulatory dictate to the contrary, it is for the decision-maker to decide how best to go about the decision-making process. It is therefore for the decision-maker to assess what information is required and how best to obtain that information. Provided sufficient relevant information is obtained to enable a rational decision to be made then I do not see how a decision-maker can be said to be in breach of the rules of procedural fairness. Clearly, he cannot knowingly avoid relevant information because it does not suit his purpose; that would be to prejudge the matter or to show bias. But no obligation rests on a decision-maker to exhaust all enquiries simply because he knows or anticipates that some issues of fact may be in contention. That would place far too onerous a burden on decision-makers. Equally, nothing is served by a sterile rule that directs a decision-maker to pursue information which he knows will be of no assistance to him; for example, because he will be unable to place any faith in the source of that information.

57. Mr Blanchflower submitted that if a duty of the kind described in the applicant's original grounds of review were imposed, then a decision could be successfully reviewed on the basis that the decision-maker did not carry out enquiries that were open to him or did not take steps to test the information he had already obtained with further and deeper enquiries. On the same basis, before a decision was made, application could be made for an order of mandamus to require the decision-maker to carry out desired enquiries. As Mr Blanchflower expressed it, such applications would necessarily ask the court to intervene in order examine and oversee the information gathering process. That, he submitted, would constitute an unjustified and improper usurpation of the decision-maker's function. I agree fully.

58. In my view, the general principle can be expressed in the following manner : it is for a decision-maker to decide how he will set about the decision-making process; if he has any obligation at all to seek information, it is only to the extent necessary to enable him, in the circumstances, to make a rational decision; namely, a decision which is not self-contradictory or based on an evident logical fallacy or in some other way perverse.

59. What must be remembered is that, when a person at risk in an administrative enquiry is given information of the allegations against him so that he can make representations, it is open to him to make enquiries for his own benefit and to include the result of those enquiries into his representations.

60. In the present case, the Commissioner had before him a report from his own surveillance experts and he had the statements of two of his officers who, in the course of interviews, had come around to the position where their tally of the numbers agreed with that of the surveillance experts. In short, he had before him evidence supporting the surveillance report.

61. In the circumstances, I fail to see how it can be argued that the Commissioner had any obligation to pursue enquiries by seeking statements from others at the dinner, a number of whom in any event may well have had reason to be less than co-operative with the Commissioner's officers. If the applicant considered their evidence important, it was open to him to obtain it. Administrative enquiries of this kind are after all 'two way streets'.

62. For the sake of completeness, I should add that I am satisfied that the Commissioner's reliance on the information he had to hand rather than information that may have been obtained from further enquiries did not in any way lead him to make a decision which was perverse, irrational or a decision which no reasonable decision-maker could make. I am satisfied that there was more than merely some material on which the Commissioner could rely, there was ample material. How he viewed that material, having consulted with the ACOC, was a matter for him.

CONCLUSION

63. For the reasons given in the body of this judgment, I am satisfied that the application for judicial review must be refused. Costs are to follow the event and are awarded to the respondent; that is , the Commissioner.

	(M.J. Hartmann)
	Judge of the Court of First Instance
	High Court

Representation:

Mr Graham Harris, instructed by Messrs Y.S. Lau & Partners, for the Applicant

Mr M.C. Blanchflower, DPGC of Department of Justice, for the Respondent

HCAL000097/2000

HCAL 97/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

ACTION NO. 97 OF 2000

____________

BETWEEN
	YU CHEE YIN	Applicant

	AND

	THE COMMISSIONER OF THE INDEPENDENT COMMISSION AGAINST CORRUPTION	Respondent

____________

Coram: Hon Hartmann J in Court

Dates of Hearing: 16 and 19 June 2000

Date of handing down Judgment: 7 July 2000

______________

J U D G M E N T

______________

1. On 28 February of this year the Applicant filed a notice of application for leave to apply for judicial review. Leave was granted on 3 March by Stock J. By notice of motion, the Applicant sought discovery of various documents which he contended were required for the fair disposal of his matter. The Respondent opposed that application. The Applicant also sought to introduce fresh evidence in the form of various witness affirmations. In response, the Respondent filed a summons seeking an order that the affirmations be excluded from consideration. Having heard submissions, I ordered that the application for discovery be dismissed and that the affirmations be excluded from consideration. My reasons are contained in this judgment.

The factual background

The Applicant joined the Independent Commission Against Corruption ('the ICAC') in 1979, rising to the rank of Senior Investigator.

2. On 10 December 1997, the Applicant went with several colleagues to a restaurant in Tsimshatsui. According to the Applicant, he was invited to go to the restaurant in order to meet a former ICAC officer named Tsui Ka-kit (Alex Tsui). Alex Tsui had held the rank of Deputy Director of the ICAC but in 1993 had been dismissed from the service in circumstances which attracted considerable publicity. Clearly, the Applicant appreciated that the meeting would not be smiled upon by the senior hierarchy of the ICAC. On his own admission, when he met the ICAC companions who were to accompany him to the restaurant, it was agreed that they should not walk together. This was so that they should not be 'over-exposed'. However, what was not known to the Applicant was that his movements (and those of his companions) were being kept under surveillance by a branch of the ICAC responsible for such duties.

3. When the Applicant and his colleagues reached the restaurant, they entered a private room. It is not disputed that Alex Tsui joined them in that room and paid for the dinner. The Applicant has protested at all times that the dinner was nothing more than an innocent social gathering and that, including himself, there were only 6 persons present. However, on the basis of other information available to him, the Commissioner of the ICAC ('the Commissioner') came to the view that, in fact, there were 3 more persons present. These 3 persons consisted of a former ICAC officer named Chiu Chi Ming who had also been dismissed from the ICAC and 2 persons who spoke Mandarin. There is no need in this judgment to say any more of the purported background of the Mandarin speakers.

4. In March 1898, an internal investigation began into the incident. The Applicant was arrested, it being suspected that he had corruptly divulged secret information. Criminal proceedings, however, were dropped and were replaced by an internal disciplinary investigation. In September 1999, the Applicant was notified that consideration was being given to terminating his employment. He was supplied with a document setting out the reasons and invited to make representations. This he did.

5. On 9 October 1999, the Applicant received official notice of termination of his employment. A statement of reasons accompanied that notice:

The Commissioner is satisfied that it is in the interests of the Commission to terminate your appointment as Commission Against Corruption Officer (Middle/Lower) for the reasons that your conduct has cast grave doubt on your judgment and integrity as an ICAC officer and on your loyalty to the Commission on the following grounds:-

(i) At the instigation of Chief Investigator LUI Kin-che (CI LUI), you attended a dinner meeting in East Ocean Restaurant in Tsimshatsui East on 10 December 1997 and met Mr TSUI Ka-kit, former Deputy Director of the ICAC who was dismissed in 1993. Acting on CI LUI's instruction, you provided counter-surveillance for CI LUI and Senior Investigator SIT Ah-lung (SI SIT) when they proceeded to the restaurant to ensure that they were not followed, so that the meeting would not be made known to the ICAC.
(ii) In addition to CI LUI, SI SIT and yourself, the dinner meeting was attended by Mr TSUI, Senior Investigator TING Ka-lun, Mr Andrew LAM Ping-cheong, a former ICAC officer, Mr CHIU Chi-ming, another ICAC officer who was dismissed under Section 8(2) of the ICAC Ordinance, and two other persons. At the material time, the ICAC was carrying out investigations into serious offences suspected to have been committed by persons known to be associates of Mr TSUI. On 1 September 1997, you were involved in an arrest and search operation involving some of the associates. Mr Andrew LAM is a solicitor who represented several suspects in the ICAC investigations. You have failed to give a satisfactory account of the purpose of the dinner gathering and discussion held. Furthermore, you said only six persons attended the dinner meeting while in fact nine persons had attended. When interviewed during the disciplinary investigation, you failed to disclose the presence of Mr CHIU and the two other persons. Your failure to give a full and truthful account of the meeting has left the Commissioner in serious doubt as to the extent of your involvement with Mr TSUI and the other personalities concerned.

6. The Applicant now seeks an order of certiorari to quash the decision of the Commissioner of the ICAC.

The legal framework within which termination proceedings were conducted

7. Section 8(2) of the Independent Commission Against Corruption Ordinance, Cap 204 ('the Ordinance') empowers the Commissioner to terminate the employment of officers under his command. The procedures to be followed if termination is contemplated are set out in the section which reads:

(2) (a) Subject to paragraph (b), the Commissioner may, if he is satisfied that it is in the interests of the Commission to do so, after consulting the Advisory Committee on Corruption, terminate the appointment of an officer.
(b) Before terminating an appointment under this subsection -
(i) the Commissioner shall by notice in writing inform the officer concerned that the termination of his appointment is under consideration and the reasons therefor; and
(ii) in the notice such officer shall be given a period of not less than 7 days within which to make, and is hereby authorized to make if he so wishes, written representations to the Commissioner as regards such reasons or as to why his appointment should not be terminated or as regards both.

(c) Where an appointment is terminated under this subsection -

(i) the Commissioner shall notify the officer in writing of the termination; ...

8. On 21 September 1995, the Commissioner issued a circular setting out the procedures to be adopted if termination of an officer's service was being contemplated. The circular set out the following procedures:

(a) The officer will be interviewed by CAC ['the Commissioner'] or an officer acting on his behalf to assist CAC in deciding whether the officer has a case of termination of appointment to answer.

9. This procedure constitutes the 'internal investigation': invariably involving the questioning of the officer.

(b) If there is a case to answer, the officer concerned will be informed by written notice:-
(i) that the termination of his appointment is under consideration and of the grounds for such action; and
(ii) that the officer may within a period prescribed in the notice, which will be not less than seven days, make written representation to CAC regarding the grounds of the contemplated dismissal, and/or as to why his appointment should not be terminated.

10. The procedures outlined here are those mandated in the Ordinance under sections 8(2)(b)(i) and 8(2)(b)(ii).

(c) A report of the case together with the officer's representations and CACs' views on those representations will then be submitted to the Advisory Committee on Corruption (ACOC) for advice; a copy of the material submitted to ACOC will be provided to the officer.

11. This procedure is mandated in section 8(2)(a) of the Ordinance which directs that the Commissioner will, before he makes any decision, consult with the Advisory Committee on Corruption which - as its name states - is an advisory body only, not a decision-making body.

(d) ACOC will consider the case, may invite the officer to appear before it, and will advise CAC who will decide in the light of that advice whether or not to terminate the appointment.

12. The decision whether or not to terminate an officer's employment is one for the Commissioner only. But it is to be made 'in the light' of advice received from the Advisory Committee on Corruption.

Applicant's request for discovery seen in light of his grounds for judicial review

13. By way of general principle, Glidewell LJ said the following in R v. Secretary of State for Home Affairs ex parte Harrison [1997] JR 113 at page 118:

"What the judge [at first instance] said was:

"In my judgment the role of the court in judicial review is different from its role in an ordinary action."
That is correct. It is impeccable. Judicial review is a different sort of process from the fact-finding process which is a necessary part of any action begun by writ and the process of applying the law to those facts. Judicial review notoriously is based upon the way in which a decision has been made, not whether the decision itself was correct."

14. In judicial review, the burden of showing that discovery is necessary rests on the person seeking it. In the present case, therefore, the Applicant must show that the discovery he seeks is necessary either for disposing fairly of his cause or for saving costs (see 0.24 of the Rules of the High Court). As Kaplan J expressed it in Au Shui-yuen, Alick v. Sir David Ford, Deputy to the Governor and Others [1991] 1 HKLR 525:

"It is not sufficient to show that these documents are relevant. It is not enough to show that production is "desirable" ..."

15. Nor will discovery be ordered when it amounts to a 'fishing exercise'; that is, when the intent is to trawl through the Respondent's papers to try and find material which may be used to mount an enhanced or further attack on the decisions under challenge.

16. In R v. Secretary of State for the Environment ex parte London Borough of Islington and the London Lesbian and Gay Centre [1997] JR 121 (CA) Lord Justice Nolan said:

The key question is whether the discovery which the applicants seek is, in the terms of RSC Ord. 24, r. 8, "necessary ... for disposing fairly of the cause or matter". The question may be rephrased more narrowly by asking whether such discovery is necessary for determining the issues of fact which arise in the case. Disputed questions of fact do not normally arise in judicial review cases, but they can of course arise and they may be crucial.

17. In order to know what - if any - are the issues of fact that have to be determined in the present case, it is necessary to refer to the Applicant's Notice of Application for Leave to Apply for Judicial Review. There are 3 challenges made in that document which may, I believe, be summarised as follows:

First Challenge

That it was 'grossly unfair' and a 'breach of the rules of natural justice 'for the Commissioner to base his decision on information received from 'an undisclosed source' or on information 'which may not be admissable in evidence in formal disciplinary proceedings'.

18. Mr Blanchflower, who appeared for the Respondent, submitted that the issues identified in this first challenge are ones of law and not of fact. He expressed it thus:

Whether natural justice requires a decision maker to disclose the sources of his information, and whether "evidence" must be in a form admissible in "formal disciplinary proceedings" are questions of law.

19. In my opinion, he is correct. By an 'undisclosed source' I presume the Applicant refers to the anonymous surveillance operatives and the evidential material gathered by them. When the Commissioner made his decision, he kept those surveillance sources confidential and it is that, as I understand it, which is the essence of the Applicant's complaint. It is, therefore, a complaint related to the manner in which the Commissioner came to his decision, not the merits of it. In the circumstances, I do not see that there is any issue of fact in contention here. The necessary facts are accepted.

20. As to the 'admissability' of such confidential information in 'formal disciplinary proceedings', the identity of such proceedings was never made known. I am not sure, therefore, whether the Applicant speaks of formal disciplinary proceedings in the generic sense or refers to some particular proceedings to which ICAC officers are subject. But in any event, the confidential surveillance material has already been sufficiently identified in its general character to enable the Applicant's counsel to make the necessary submissions on the principles of admissability. In such circumstances, this again being a matter of law, I fail to see how the disclosure of material such as log books and video film (if it exists) can advance this aspect of the Applicant's cause.

Second Challenge

That it was again a breach of the rules of natural justice for the Applicant to be given 'no fair opportunity for correcting or contradicting what was said against him' and to be given 'no opportunity to test, by cross-examination or otherwise, the veracity of the statements' upon which the commissioner relied.

21. Mr Blanchflower submitted that this challenge too was one of law not of fact. Again, I believe there is merit in that submission. Mr Blanchflower submitted as follows:

This ground raises a question of law: to what extent does natural justice entitle a person to contradict and correct adverse information, or to cross-examine those persons who have given prejudicial information against him?

22. When the Applicant complains that he was not given an opportunity to correct or contradict what was said against him, I take that to mean that he was not shown the evidential material in advance so as to be able to know fully what the case was against him and to be able to make his representations in light of that material. That in my view is an objection to the procedure adopted by the Commissioner. Similarly, the complaint that he was denied the right to cross-examine must relate to the denial of a procedural right. In the circumstances, it is not a matter for this Court whether or not material has existed upon which to base a cross-examination.

Third Challenge

That the Respondent's failure to 'conduct adequate enquiries' to establish exactly how many persons attended the dinner at the restaurant has led the Commissioner to 'a conclusion' that was 'Wednesbury unreasonable' in the sense that it was based on information which could not reasonably support his decision.

23. Here again Mr Blanchflower has contended that the issue is one of law and not of fact. He expressed it thus:

This ground raises a question of law: did the Respondent's failure to conduct further enquiries result in his decision being 'Wednesbury unreasonable'?

24. That there were other people at the dinner whose identities were known to the ICAC and who could be contacted has never been in issue. The complaint, as I understand it, relates to the fact that the Commissioner failed to take their statements and to give due heed to those statements in his decision making. That again, in my view, is a matter of the manner in which the Commissioner reached his decision; namely, that he did not avail himself of all the evidence available but was selective and, therefore, as Mr Egan, Respondent's leading counsel, has expressed it: "he purposefully hamstrung himself". But that, in my view, does not involve a question of considering any of the material which the Respondent seeks by way of discovery. Nor does it involve a study of the affirmations of those 'other people' which the Applicant has now obtained and wishes to have admitted into evidence. In order to resolve the matter raised in the third challenge, the primary facts are already agreed.

25. There being no material issues of fact which must be determined to resolve the various challenges made by the Applicant to the decision of the Commissioner, I would be inclined on that ground alone to rule that the application for discovery be dismissed. On that broad basis, the Applicant has not discharged the onus on him of showing that discovery is necessary to dispose fairly of his cause or to save costs. But should I be wrong in this regard, it is necessary to consider the individual classes of documents in respect of which the Applicant seeks discovery. There are 8 in all.

Classes 1 and 2: the ICAC surveillance materials

26. In his reasons for terminating the Applicant's employment, the Commissioner spoke of the manner in which the Applicant had conducted himself as he proceeded from the Tsimshatsui MTR station to the restaurant. The Applicant admitted that he and his companions had not proceeded in one group to avoid 'over exposing' themselves. However, the Commissioner said that the Applicant had done more than that, he had undertaken 'counter-surveillance' measures in an attempt to ensure they were not followed. The Commissioner also spoke of 9 persons attending the dinner not just 6 as the Applicant had said. In light of this, the Applicant has sought discovery of the ICAC surveillance material. The names of individual officers are not required but the material is to include such items as the statements of the surveillance officers, notebook and log entries, operational briefs and all video or photographic material.

27. But how will this material assist the Applicant in his cause before this Court or assist the Court itself? This Court is unable to view the material to decide whether counter-surveillance measures were taken or not. It has no expertise in the matter and will have to hear evidence. That will involve the Court in deciding issues of fact which are the prerogative of the Commissioner. As was said by Cons V-P in Ngoyen Ho and Others and Director of Immigration [1891] 1 HKLR 576: 'Courts must in no circumstances allow themselves to be enticed into the evaluation of a fact which is properly within the exclusive jurisdiction of the tribunal'.

28. Mr Richmond, junior counsel for the Applicant, has argued that the Applicant is entitled to discovery of this material because, as he put it, he is entitled to know the 'true nature' of the surveillance evidence in order to understand why the Commissioner has accepted that evidence (together with other supporting evidence) rather than his own evidence.

29. But a summary of that surveillance evidence has now been supplied to the Applicant. It appears in the affirmation of Yiu Cheuk Wah, a Principal Investigator in the ICAC. The summary begins as follows:

'Sometime after 18:00 hours SIT was seen waiting near the Hang Seng Bank at the concourse of the Tsimshatsui MTR Station. YU was also seen in the vicinity. They stayed separate at a distance and did not make any contact.

Shortly after, LUI joined SIT at the concourse and put his arm over SIT's shoulder and they walked towards the exit. YU walked behind LUI and SIT and appeared to be taking counter-surveillance precautions.

LUI and SIT emerged from the MTR exit at Carnarvon Road. They walked from the MTR station to the East Ocean Centre. During their walk, YU walked behind them all the way to the East Ocean Centre and appeared to be spotting for persons following them.

At the East Ocean Centre LUI, SIT and YU entered the VIP Room "Coral" of the Restaurant together ...

30. No suggestion has been made that this summary is plainly wrong. No independent material has been put before the Court to indicate that it is so. It appears to me that the Applicant is basing his application on the following contention: "I disagree with the factual findings of the Commissioner. I therefore require full disclosure of the material on which he based his decision to see whether, and to what extent, it supports the Commissioner's decision. If the material does not, in my view, support his decision, that will give me specific grounds upon which to attack the decision".

31. But it seems to me, apart from it being a fishing exercise, that the Applicant is here putting the cart before the horse. Surely it is for the Applicant to say - as he has pleaded - that it was a breach of natural justice for the Commissioner not supply him with this material before he was asked to make representations. As a result, he was not able to study the material and make specific answers to it. If the Court accepts that argument and quashes the decision of the Commissioner, remitting the matter for reconsideration, that will be the time for the Commissioner to supply the necessary material in accordance with this Court's directions.

32. Admittedly, Mr Yiu has only summarised the surveillance evidence but, as I have said earlier, no suggestion has been made that there is independent evidence available to show that the affirmation is plainly wrong. In such circumstances, I do not see how the Applicant can be given leave to go behind the affirmation to seek to discover whether it is accurate in all material particulars or not. That amounts to a search for new grounds upon which to attack the Commissioner's decision and that, in plain terms, is a fishing exercise. I am supported in this by the dicta of Glidewell LJ in the English Court of Appeal decision in R v. Secretary of State for Home Affairs ex parte Harrison (supra):

Mr Laws submits that an applicant is not entitled to go behind an affidavit in order to seek to ascertain whether or not it is correct unless there is some material available outside that contained in the affidavit to suggest that in some material respect the affidavit is not accurate. If there is such material it may be right to order discovery to follow that up. But without some prima facie case for suggesting that the affidavit is in some respects incorrect it is improper to allow discovery of documents, the only purpose of which, as I have said, would be to act as a challenge to the accuracy of the affidavit. With that submission also, which is of general application, I agree.

Classes 3 and 4: the full statements of fellow ICAC officers

33. The Commissioner's decision to terminate the Applicant's employment was based, in part, on statements made by 2 ICAC officers who accompanied the Applicant to the dinner. The officers were Ting Ka Hun and Sit Ah Lung. Both officers made a number of statements. Edited versions of those statements have been made available to the Applicant. The Respondent contends that the undisclosed parts of the statements are not relevant to the judicial review.

34. It has been contended on behalf of the Applicant, however, that those extracts from the statements which have been used against him did not constitute consistent admissions made by the 2 officers. It is argued that it is apparent from what has now been revealed that the admissions constituted 'significant departures' from what had been said by the officers at other times. It is therefore essential that the full, unedited statements be made available so that the Applicant can ascertain why and how these departures came about. But this again, in my view, is a fishing exercise. The Applicant is seeking out material to assist his cause with no independent evidence to show that it does or does not exist.

Class 5: the Report of the ICAC Operations Review Committee made in March 1999 (in so far as it relates to the Applicant)

35. In his affirmation, Yiu Cheuk Wah explained the constitution and workings of the Operations Review Committee in the following terms:

The Operations Review Committee ("ORC") is comprised of the Commissioner and the Head of Operations, ICAC, as ex-officio members, along with other ex-officio members and civilians appointed by the Chief Executive. One of its terms of reference is to oversee the ICAC's corruption investigations, specifically:
To receive from the Commissioner reports on the investigations the Commission has completed and to advise on how those cases that on legal advice are not being subject to prosecution or caution, should be pursued.

36. Initially, the Applicant was the subject of a criminal investigation by the ICAC but, as I have said earlier, that investigation was later dropped. In his affirmation, Mr Yiu explained the procedure that was adopted:

On 5 May 1999 the ORC considered the corruption investigation report relating to: YU, LUI, TING and SIT, and endorsed the ICAC's recommendation that:
(a) no further investigative action be taken;
(b) the officers be informed that on the basis of facts then known, no further criminal investigative action would be pursued; and
(c) consideration be given to any disciplinary or administrative action which may be necessary arising from the investigation.

37. It was not the responsibility of the Operations Review Committee to supervise or advise on any disciplinary or administrative action that was taken. In short, after its recommendations, it had no further involvement in the matter. The Applicant does not complain of any procedures adopted or recommendations made by this committee. I therefore fail to see how its report can be of any relevance. There can only be one reason why the Applicant seeks access to the Committee's report: it is to try and find material favourable to him.

Class 6: those portions of the Advisory Committee on Corruption report not already disclosed to the Applicant

38. The Committee's report in respect of the Applicant has been disclosed to him. The Respondent, however, has not disclosed those portions of the report which relate to other ICAC officers. The Respondent says that those other parts are not relevant to the Applicant's cause.

39. It has been argued on behalf of the Applicant, however, that all information concerning the other officers and how it was that they came to 'change their statements' should be discovered. Why? Because, as Mr Richmond expressed it, 'the Applicant queries the manner in which the statements came to be changed' and 'wishes to understand why the Commissioner placed reliance' on those statements. Again, in my opinion, this is clearly a fishing exercise.

40. For the reasons given in respect of classes 3 and 4; namely, the full statements of the other ICAC officers, I am satisfied that discovery of the edited version of the report should not be allowed.

Classes 7 and 8: the full membership list of the Operations Review Committee and the Advisory Committee on Corruption

41. Mr Egan has argued that the Applicant is entitled to know the full membership of the 2 committees in order to discover whether the reality of the situation is that 'Ceasar is reporting to Ceasar'. But the Applicant already has some indication of the membership of the Operations Review Committee and, in greater detail, of the Advisory Committee on Corruption.

42. It is not part of the Applicant's stated cause that there was no genuine separation of responsibilities and that accordingly, as Mr Egan expressed it, Ceasar was reporting to Ceasar. Patently, therefore, the Applicant is here seeking out new grounds. In short, as with his request in respect of all either classes of documents, he has sought permission to embark upon a fishing exercise.

The application to file fresh evidence

43. The Applicant has sought to support his cause by filing fresh evidence in the form of various affirmations. The affirmations have been made by persons who were either dining with the Applicant at the restaurant or serving the guests. Suffice to say that they support the Applicant's contention that there were only 6 people dining that night. The Respondent has objected to the filing of this fresh evidence.

44. It is common cause that the evidence contained in the affirmations was not before the Commissioner when he made his decision. Indeed, that is the foundation of the Applicant's third challenge. But a claim of unreasonableness in the 'Wednesbury' sense is judged in light of the information that was before the decision maker when he made the decision. It is not judged in the light of information that has only become known after the event. In this regard, Cons V-P said in Nguyen Ho and others v. Director of Immigration (supra):

From that exposition alone I am satisfied that unreasonableness as a factor by itself, what might be termed the second limb in Wednesbury, can only be judged with regard to what was known to the inferior tribunal at the time.

45. The Court can, however, receive fresh evidence when it accords with the principles laid down in R v. Secretary of State for the Environment ex parte Powis [1981] 1 WLR 584. Those principles were approved in Re Lo Wing-tong [1990] 1 HKLR 325 at page 337 where Cons V-P said that Hong Kong courts would exclude fresh evidence in judicial review unless that evidence adhered to the traditional principles set down in Powis. The principles are summarised as follows:

1. The court can receive evidence to show what material was before the minister or inferior tribunal.
2. Where the jurisdiction of the minister or interior tribunal depends on a question of fact or where the question is whether essential procedural requirements were observed, the court may receive and consider additional evidence to determine the jurisdictional fact or procedural error.
3. Where the proceedings are tainted by misconduct on the part of the minister or member of the inferior tribunal or the parties before it. Examples of such misconduct are bias by the decision making body, or fraud or perjury by a party. In case fresh evidence is admissable to prove the particular misconduct alleged.

46. In my judgment, the fresh evidence which the Applicant seeks to place before the Court does not accord with any of these principles. Nor, frankly, do I see how that evidence advances the Applicant's challenge which, as I understand it, is based on the premise that the Commissioner had an obligation to seek out all available witness evidence, whether that evidence was favourable, unfavourable or neutral, and it was his failure in this regard that made his decision 'Wednesbury unreasonable'.

Public Interest Immunity

47. In light of my ruling that none of the documents sought by the Applicant are necessary for disposing fairly of the Applicant's cause or for saving costs, it is not necessary for me to go into the question of public interest immunity in any depth.

48. The Respondent has claimed public interest immunity in respect of 2 classes of documents only: the surveillance material and the report of the Operations Review Committee. In my judgment, if it had been necessary, the claims would have been upheld. I say this in full awareness of the fact that it is a serious step to exclude evidence relevant to an issue and to do so the step must be justified by a convincing demonstration that the public interest requires it. In short, the public interest in preserving the confidentiality of certain acts of our law enforcement agencies must be weighed against the public interest that information which might assist the Court should be not be kept from it.

49. However, let me repeat the words of Kaplan J in In re Au Shui Yuen, Alick v Sir David Ford Deputy to the Governor and Others (supra):

Corruption is a serious matter and it is very much in the public interest that investigations into corruption not be hampered and that the guilty be brought to justice ... It is essential that materials relating to ongoing criminal investigations should not be A disclosed.

50. I would also refer to the judgment of Hunter J in Khan v. O'Dea and Another [1987] 1 HKLR 576 in which the judge studied the relevant legislation and came to the following conclusion:

It seems to me perfectly plain that the ICAC and the UMELCO Committee can only start to perform their proper functions and give effect to the statutory purposes set out in and clearly discernible from the two Ordinances that I have mentioned, if they can act in complete confidence. The suggestion that their files are on risk of discovery in civil proceeding must in my judgment be put aside completely.

51. The UMELCO Committee referred to was a complaints committee. In the present case, the Operations Review Committee is a body which also discharges a sensitive and confidential role. Reports prepared for it contain full details of criminal investigations together with comments, views and assessments; they also include legal advice. This information is released to the Committee on a basis of mutual trust.

Orders

52. My orders, therefore, are as follows:

1. That the application by the Applicant for discovery of all classes of documents is dismissed.
2. That the order sought by the Respondent in the summons filed in these proceedings on 9 June 2000 is granted so that the affirmations listed in that summons are excluded from consideration.
3. That costs be reserved.

	(M J Hartmann)
	Judge of the Court of First Instance

Representation:

Mr K B Egan and Mr M Richmond, instructed by Messrs Y S Lau & Partners, for the Applicant

Mr M C Blanchflower, of the Department of Justice, for the Respondent

YU CHEE YIN v. THE COMMISSIONER OF THE INDEPENDENT COMMISSION AGAINST CORRUPTION

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